Lithographers Local One-L (Metropolitan Lithographers Assn.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352 NLRB No. 114 906 Local One-L, Amalgamated Lithographers of Amer- ica and the Metropolitan Lithographers Associa- tion, Inc. Case 2–CB–21027 July 31, 2008 DECISION AND ORDER BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN On January 29, 2008, Administrative Law Judge Mindy E. Landow issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The General Counsel filed an answering brief. The National Labor Relations Board1 has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings, and conclusions,2 and to adopt the recommended Order. 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 2 We affirm the judge’s conclusion that Respondent Union violated Sec. 8(b)(3) by refusing to supply information requested by Charging Party Metropolitan Lithographers Association, Inc. (MLA) in pars. 8, 12–21, and 28–33 of a letter dated February 13, 2007. The General Counsel does not except to the judge’s conclusion that the Respondent did not unlawfully fail to provide information requested in pars. 1–3 and 5–6 of the same letter. Chairman Schaumber does not necessarily agree with Board prece- dent holding that a requester may simply state a reason for its informa- tion request without giving any factual basis for the request. See Hertz Corp. v. NLRB, 105 F.3d 868, 874 (3d Cir. 1997). Here, the judge found that the memorandum of understanding (MOU) between the Respondent and Barton Printing, on its face, raised objective factors that supported a reasonable belief that a relationship existed between Barton Printing and Barton Press, and the Respondent did not except to this finding. Moreover, the MLA raised additional objective factors at the hearing apprising the Respondent of the relevancy of its information requests, and the Respondent has continued to withhold the requested information. Under these circumstances, Chairman Schaumber would find the violation. See Dodger Theatricals Holdings, Inc., 347 NLRB 953, 953 fn. 3 (2006). The Respondent did not except to the judge’s rejection of certain of its affirmative defenses, namely that: the limitations period of Sec. 10(b) should bar litigation of the 8(b)(3) allegation; some of the re- quested information is confidential; the MLA’s true purpose in making its request was to obtain information to be used against commercial competitors; requiring production of the information would violate antitrust laws; and compliance with the request would be unduly bur- densome. The Respondent does except to the judge’s rejection of its affirma- tive defense that the information request dispute should be deferred to the parties’ grievance and arbitration system. Chairman Schaumber views the information request as covered by the parties’ contractual arbitration clause and would defer the request to arbitration. See Team Clean, Inc., 348 NLRB 1231, 1231 fn. 1 (2006). He recognizes, how- ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Local One-L, Amalgamated Lithographers of America, New York, New York, its officers, agents, and representatives, shall take the action set forth in the Order. Nicole A. Buffalano, Esq., for the General Counsel. Thomas M. Kennedy and William G. Schimmel, Esqs. (Ken- nedy, Jennik & Murray, P.C.), of New York, New York, for the Respondent. G. Peter Clark, Esq. (Kauff, McClain & McGuire, LLP), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE MINDY E. LANDOW, Administrative Law Judge. The Metro- politan Lithographers Association, Inc. (the MLA or Associa- tion) filed the charge in this case on February 5, 2007,1 and the Regional Director for Region 2 of the National Labor Relations Board (the Board) issued a complaint on June 29. The com- plaint alleges that Local One-L, Amalgamated Lithographers of America (the Union or Respondent) violated Section 8(b)(3) of the National Labor Relations Act (the Act) by failing and refus- ing to furnish information requested by the MLA that was rele- vant to the enforcement of the collective-bargaining agreement between the Union and the Association. The Respondent filed a timely answer in which it denied that it had violated the Act, and raised a number of affirmative defenses, discussed below. A hearing on the complaint was held before me on October 3, in New York, New York. Briefs have been filed by the parties and have been carefully considered. On the entire record, I make the following FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION The MLA is a multiemployer association whose constituent members are located at various locations in and around the states of New Jersey and New York, and are engaged in the business of providing printing services to commercial custom- ers. Annually, in the course and conduct of their business op- erations, the employer members of the MLA, in the aggregate, perform services for customers located throughout the United States in excess of $50,000. It is admitted, and I find, that the MLA is and has been an employer within the meaning of Sec- tion 2(2), (6), and (7) of the Act. It is also admitted, and I find, that the Union is and has been a labor organization within the meaning of Section 2(5) of the Act. ever, that Board precedent is to the contrary. See, e.g., Shaw’s Super- markets, 339 NLRB 871, 871 (2003) (stating that “[t]he Board has a longstanding policy of nondeferral to arbitration in information request cases”). Accordingly, for institutional reasons, he concurs in finding that the Respondent violated Sec. 8(a)(5) by failing to furnish the re- quested information. 1 All dates are in 2007 unless otherwise specified. LITHOGRAPHERS LOCAL ONE-L (METROPOLITAN LITHOGRAPHERS ASSN.) 907 II. ALLEGED UNFAIR LABOR PRACTICES A. The Parties’ Collective-Bargaining Relationship and Relevant Contractual Clauses Respondent is a labor organization representing employees in the printing trades. The MLA is comprised of six employers in the printing industry, five of which are engaged in commer- cial printing. The MLA and Respondent have a longstanding collective-bargaining relationship and are parties to a collec- tive-bargaining agreement (CBA or Agreement) currently ef- fective from July 1, 2005, through June 30, 2009. Paragraph 3A of the Agreement defines the unit as follows: The Employers recognize the Union as the exclusive collec- tive-bargaining agent for all of the lithographic (offset) pro- duction Employees in the plants or departments of the Em- ployers within the Union’s territorial jurisdiction. The term “lithographic production employees” (“hereafter referred to as “Employees,” shall mean those employees engaged in the manufacture of lithographic work including working foremen as well as nonworking foremen and supervisors of such em- ployees, but excluding plant managers, assistant plant manag- ers, and all other managerial employees. Excluded also are: sales, professional, sketch artists, office and clerical employees. This contract shall not apply to any employees in existing plants or departments located outside the “New York and New Jersey Districts” as that term was defined in the Agreement between the Union and the Associa- tion, effective May 1, 1973, to April 30, 1976, which were not covered by said Agreement.2 The entire Agreement is subject to arbitration pursuant to section 38, “Grievances and Arbitration,” which states in rele- vant part: (a) In the event of any dispute with reference to the interpreta- tion [,]application or breach of any of the terms contained in this contract, the matter shall be taken up in the following manner: . . . (4) if a decision by a majority of the Joint com- mittee is not reached . . . the matter shall be submitted to an impartial arbitrator to be selected unanimously by the mem- bers of the Joint Committee, and in the absence of such unanimous agreement, either party may submit the matter for arbitration to the American Arbitration Association, to be ar- bitrated pursuant to their rules. The grievance arbitration provision of the Agreement con- tains no specific reference to the adjustment of disputes arising over the production of information from one party to another. Section 40 of the Agreement, entitled, “Better Contracts,” is essentially a “most-favored nations” clause and provides as follows: 40.(a) In the event the Union grants or intentionally permits any employer engaged in the commercial lithographic print- ing industry within the territorial jurisdiction of the Union more favorable terms than those applicable to the Employers 2 It is admitted, and I find, that this is a unit appropriate for the pur- poses of collective bargaining. covered by this Agreement, the Association shall have the right to demand that such more favorable terms are deemed to be part of this agreement; provided however, that this provi- sion shall not apply to any employer who, as of the effective date of the Agreement (a) has never been covered by any agreement with the Union; or (b) is already a party to an agreement with the Union granting such Employer more fa- vorable terms than are contained herein. With respect to agreements with an Employer engaged in the commercial lithographic printing industry within the territorial jurisdiction of the Union to which the Union has or will become party as a result of a merger of another union into the Union, if the Un- ion enters into an agreement which contains terms more fa- vorable than those prevailing at the time of the merger, the Association shall have the right to demand that such more fa- vorable terms be deemed to be part of this agreement. Notwithstanding the foregoing, the Association shall not be entitled to demand more favorable terms if the Union demon- strates affirmatively that: (1) such more favorable term(s) was (were) granted in exchange for concessions or benefits (other than a wage increase) of equal or greater economic benefit to the Union; (2) the more favorable term(s) was (were) granted solely because the prior less favorable terms were not in prac- tice observed or in effect in the shop. (b) Any dispute arising under this provision shall be submitted to arbitration in accordance with the arbitration provisions of this Agreement. (c) On request of the Association, the Union shall exhibit to a designated representative of the Association any collective bargaining agreements between the Union and any Employer or Employers. Joseph Cashman, the only witness to testify, is and owner and president of Litho Arts, one of the employer-members of the MLA. He testified that the Association’s function is to act as counsel and negotiator in disputes with the Union and nego- tiate contracts for its members. He further testified that the purpose of the “Better Contracts” provision of the Agreement is to ensure that they will receive the best contract, in terms of manning presses, vacations, and benefits that may be negotiated with the Union of all union shops. If there is an independent contract with more favorable terms, the Association can seek to implement such terms. An exception to this general rule exists where the Union enters into an initial agreement with a com- pany which has never been a signatory to an agreement with the Union. B. The Relationship of Barton Press and Barton Printing to the Instant Dispute Barton Press, Inc. (Barton Press) was a member of the MLA for a number of years, but most recently has entered into inde- pendent labor agreements with the Union. According to Cash- man, the terms of these agreements mirror those contained in the MLA Agreement. Barton Press is owned by an established non-Association lithographer, EarthColor. EarthColor is also the parent corporation of other non-Association lithographers; DECISIONS OF NATIONAL LABOR RELATIONS BOARD 908 notably, Barton Printing, Inc. (Barton Printing).3 Both Barton Printing and Barton Press are competitors to the constituent members of the MLA. In the latter part of 2005, members of the MLA had cause to believe that the Union had negotiated a new contract with an entity related to EarthColor. Acting on this belief, on October 26, 2005, MLA Counsel Kenneth A. Margolis wrote to Thomas M. Kennedy, counsel for the Union, requesting copies of the collective-bargaining agreement entered into by the Union with “EarthColor and/or Barton Kashen and/or APT.” On February 2, 2007, the Union sent the MLA a memorandum of agreement between the Union and Barton Printing which was signed on March 30, 2006, and is effective by its terms until June 30, 2011 (the MOA). This is the first such agreement between the parties. The MOA contains the following provisions relevant to the instant dispute: WHEREAS, the Employer has advised the Union that it is a separate independent employer that is operated independently from any other employer including Barton Press even though the Employer shares or will share in the near future a common owner with Barton Press; WHEREAS, the Union is relying on those representations to consent to terms of employment which, while in excess of the terms prevailing at the Employer at the time of the agreement are not the same as the terms of employment prevailing in the shops belonging to the Metropolitan Lithographers Associa- tion (“MLA”); WHEREAS, the Employer has committed to maintaining a separate corporate entity for the Employer throughout the term of this Memorandum of Agreement (“Agreement”) in- cluding, but not limited to, a separate payroll, separate equip- ment and an arms-length business relationship between the Employer and any affiliated companies that are members of the MLA so that any business between such affiliate compa- nies is invoiced and accounted for as though with an unrelated entity; and, WHEREAS, the Employer has agreed that if, at any time, it is determined to have caused the Union to have breached its Better Contracts clause with the MLA, the Employer will take such steps as are necessary so that there is no violation of the MLA Better Contracts Clause. [Emphasis in original.] According to Cashman, the MOA presently contains more favorable terms regarding wages, press manning, and holiday schedules which would arguably provide Barton Printing with a competitive advantage over members of the Association.4 On cross-examination, Cashman was asked whether knowing the 3 It appears from the record that, at some unspecified point in time, EarthColor acquired a company known as Associated Printing Tech- nologies, Inc. (APT), which then changed its name to Barton Printing, Inc. 4 Except as otherwise provided in the MOA, the terms and condi- tions of the Agreement are applicable to Barton Printing. Effective July 1, 2009, the general wage increases as set forth in the Agreement would be applicable to the employees of Barton Printing, and as of July 1, 2011, the manning compliments then existing in the Agreement would be applicable to the Barton Printing presses. wages and hours and other terms and conditions of employment of competitors such as Barton Printing and Barton Press would assist his company in developing bids. Cashman’s response was that in most cases, he would not know who he was bidding against, so the information would not necessarily provide him with a competitive advantage. A limited exception would exist in circumstances where a company is trying to obtain an ac- count currently held by another known lithographer. After reviewing the MOA, Cashman searched the EarthColor internet site and came to believe that Barton Press and Barton Printing may be related to each other and operating under EarthColor, in which case the above-noted exception to the Better Contracts clause might not be applicable. In such an instance, the MLA would be privileged to invoke the more favorable terms of the MOA. C. The Association’s Information Request On February 13, Margolis wrote to Union Official Patrick LoPresti as follows: We have received your letter dated February 2, 2007 enclosing a copy of what purports to be a memorandum of agreement between Local One-L (the “Union”) and an employer identified as “Barton Printing, Inc.” Presumably this document was provided as a partial response to the re- peated requests of the Metropolitan Lithographers Asso- ciation (“MLA”) pursuant to Article 40, Better Contracts, for the opportunity to review all collective bargaining agreements between Local One-L and EarthColor, Applied Printing Technologies, Barton Press, Inc., and their related companies. As you know, those requests were made on numerous occasions, dating back to October 2005, and the Union’s non-compliance eventually necessitated the filing of an unfair labor practice charge by the MLA. The agreement between Barton Printing, Inc. and the Union is in many material aspects far more favorable to the employer that the agreement between the Union and the MLA. Simply by way of illustration, and without limi- tation, the Barton Printing, Inc. agreement contains provi- sions on wages, complements, vacations, holidays and benefits that are all significantly more favorable to the employer. Accordingly, the MLA and each of its member com- panies reserve the right, in accordance with the terms of the Better Contracts provision, to adopt and implement some or all of those more favorable terms, and to do so as of March 30, 2006, the effective date of the Barton Print- ing Inc. agreement. Without waiving the foregoing, and in order to evalu- ate further the parties’ rights and obligations under the Better Contracts provision, the MLA is requesting the fol- lowing information from the Union. If the Union is not in possession of any of the information sought, it should so represent in a written response to this request. In our view, the Union’s longstanding failure to respond to the MLA’s prior requests for information bespeaks an intention to de- prive the MLA companies of their rights under the Better Contracts provision. Consequently the MLA cannot be placed in a position where there is additional delay on the LITHOGRAPHERS LOCAL ONE-L (METROPOLITAN LITHOGRAPHERS ASSN.) 909 part of the Union, and it must have a complete response to the following information requests within the next ten (10) days. 1. Does the Union contend that the MLA companies are not entitled under the Better Contracts provision to im- plement the more favorable terms contained in the Barton Printing, Inc. agreement? 2. If the response to question 1 is in the affirmative, state the contractual basis for the Union’s contention. 3. Set forth each and every fact which supports the pu- tative contractual basis identified in question 2 above. 4. State whether Barton Press, Inc., or any other entity affiliated in any manner with EarthColor, is party to a col- lective bargaining agreement with the Union and, if so, provide a copy thereof. 5. Describe in detail the measures, if any, undertaken by the Union to ascertain the accuracy of the representa- tion that Barton Printing, Inc. that it is “a separate inde- pendent employer that is operated independently from any other employer including Barton Press.” 6. Describe in detail the measures, if any, undertaken by the Union to ascertain whether Barton Printing, Inc. has complied with its commitment to maintain “a separate corporate integrity for the Employer throughout the term of [the Agreement] including, but not limited to a separate payroll, separate equipment, and an arms-length business relationship between [Barton Printing, Inc.] and any affili- ate companies that are members of the MLA so that any business between such affiliate companies is invoiced and accounted for as though with an unrelated entity.” 7. Describe the business of Barton Printing, Inc. 8. State the address(es) and telephone and fax num- ber(s) of Barton Printing, Inc. 9. State whether Barton Printing, Inc. maintains a web- site and, if so, state the URL thereof. 10. Produce copies of any business cards, letterhead, promotional materials, advertisements, announcements and other documents bearing the name of Barton Printing, Inc. 11. Identify each and every past and present parent, subsidiary, division and other entities that are affiliated in any manner with Barton Printing, Inc. and state the nature of such affiliation. 12. Describe each and every press and any and all other lithographic production equipment operated by, or on the premises of, Barton Printing, Inc. as of the effective date of the collective bargaining agreement between Bar- ton Printing, Inc. and the Union identify the number and classifications of employees assigned to each such press or other equipment. 13. Describe each and every press and any and all other lithographic production equipment operated by, or on the premises of Barton Printing Inc. at any time since the effective date of the collective bargaining agreement between Barton Printing, Inc. and the Union. Identify the number and classifications of employees assigned to each such press or other equipment. State whether any such equipment formerly was located on the premises of Barton Press, Inc. and/or any other affiliated entity. 14. Describe each and every press and any and all other lithographic production equipment operated by, or on the premises of, Barton Press, Inc. as of the effective date of the collective bargaining agreement between Bar- ton Printing, Inc and the Union. Identify the number and classifications of employees assigned to each such press or other equipment. State whether such equipment formerly was located on the premises of Barton Press, Inc. and/or any other affiliated entity. 15. Describe each and every press and any and all other lithographic production equipment operated by, or on the premises of, Barton Press, Inc. at any time since the effective date of the collective bargaining agreement. Identify the number and classifications of employees as- signed to each such press or other equipment. State whether such equipment formerly was located on the premises of Barton Printing, Inc. and/or any other affili- ated entity. 16. State whether Barton Printing, Inc. and Barton Press, Inc. share any customers, equipment, salespersons, supervisors, managers or employees. If the Union is not in possession of this information, state whether the Union has requested this information from Barton Printing, Inc. or Barton Press, Inc. and the date(s) and outcome(s) of such requests. State whether any such equipment formerly was located on the premises of Barton Printing, Inc. and/or any other affiliated entity. 17. Describe the “standards [of press manning] at APT at the time of purchase by Barton Printing,” as referred to in paragraph 4D of the Barton Printing Inc. agreement 18. Identify each and every representative of Local One-L (including counsel) who participated in the collec- tive bargaining negotiations with Barton Printing, Inc. 19. Identify each and every representative of Barton Printing, Inc. (including counsel) who participated in the collective bargaining negotiations with the Union. 20. Produce copies of all correspondence, memoranda, proposals and other communications of any kind or nature between the Union and Barton Printing, Inc. since October 2005. 21. Produce copies of all correspondence, memoranda, proposals and other communications of any kind or nature between the Union and any person or entity employed by or affiliated in any manner with EarthColor or its subsidi- aries or divisions, relating to or referring to the terms and conditions of employment of lithographic production em- ployees or to be employed at 77 Moonachie Avenue, Moonachie, New Jersey. 22. Identify each and every person or entity which holds any ownership interest in Barton Printing, Inc., in- cluding the extent of such interest. 23. Identify each and every person or entity which holds any ownership interest in Barton Press, Inc., includ- ing the extent of such interest 24. Identify each and every officer of Barton Printing, Inc. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 910 25. Identify each and every member of the Board of Directors of Barton Printing, Inc. 26. Identify each and every officer of Barton Press, Inc. 27. Identify each and every member of the Board of Directors of Barton Press, Inc. 28. Produce a list of the names, classifications, and date of hire of each bargaining unit employee at Barton Printing, Inc. 29. Produce a list of the names, classifications and date of hire of each bargaining unit employee at Barton Press, Inc. 30. Identify each working and non-working foreman employed at Barton Press, Inc. 31. Identify each working and non-working foreman employed at Barton Printing, Inc. 32. Identify any and all delegates, shop stewards or other officers or representatives of Local One-L employed at Barton Press, Inc. 33. Identify any and all delegates, shop stewards or other officers or representatives of Local One-L employed at Barton Printing, Inc. After the above letter was sent, Cashman received informa- tion from a former employee who worked for Barton Printing that that the press rooms of Barton Printing and Barton Press were being operated from one building separated by a glass wall, that there was a common and interchanged work force, and that two companies shared a common sales force and common management. D. The Union’s Response to the Association’s Request for Information On March 9, Union Counsel Kennedy wrote to Margolis, en- closing a copy of the Barton Printing MOA. In this letter, he further stated: I have also reviewed the extensive interrogatories that you have presented to Local One-L. They go well beyond what the MLA contract requires and [the Union does] not believe that the union has an obligation to engage in far reaching and burdensome efforts to generate responses to these interrogatories. If there is a particular and relevant question that we can answer without engaging in a burden- some analysis, please let me know and we will review it. Margolis did not reply to this letter. On May 21, Kennedy sent Margolis the Union’s response to its information request. Each numbered paragraph of the Association’s letter is responded to with a corresponding paragraph (with the exception of requests numbered one through three, which are grouped together for response). The Union prefaced each response with the follow- ing statement of position: The Union denies that it has any legal obligation to an- swer this question which is not a request for information under the National Labor Relations Act but rather an inter- rogatory under the Federal Rules of Procedure. It would be highly prejudicial to the conduct of labor relations gener- ally to import into them the several procedures applicable to discovery under the Federal Rules and a disservice to the parties to even attempt to do so.5 The Union then offered the following responses to the Associa- tion’s information request: 1–3.With a full reservation of rights and without prejudice to the foregoing, Local One-L answers the first through third question by stating that Local One-L is dedi- cated to the proposition that the Metropolitan Lithogra- phers Association is entitled to the benefits which it has negotiated under its contract with Local One-L. But with those rights come responsibilities and one of them is to re- strict its attempt to apply the Better Contracts clauses to instances which are encompassed under that agreement. 4. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the fourth question by stating: Yes. 5. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the fifth ques- tion by stating: The Union is not clear what is meant by “measures.” The representations as to the separate corpo- rate and business status of Barton Printing, Inc are set forth in the applicable collective bargaining agreement. To the extent the MLA or any of its members have competent information that those representations have been or are be- ing breached, we would welcome such information. 6. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the sixth ques- tion by stating: See answer to 5 above. 7. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the seventh question by stating: Printing. 8. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the eighth question by stating: This information is known to the MLA and does not require repeating here. 9. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the ninth ques- tion by stating: Unknown. 10. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the tenth ques- tion by stating: Local One-L does not maintain copies of such materials. 11. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the eleventh question by stating: Unknown. 12. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the twelfth 5 The initial response to questions one through three contains somewhat different language, as follows: The Union denies that it has any legal obligation to answer this question which is not a request for information under the Na- tional Labor Relations Act but rather a contention interrogatory under the Federal Rules of Procedure. It would be highly prejudi- cial to the conduct of labor relations, generally, to import into them the several procedures applicable to discovery under the Federal Rules and a disservice to the parties to even attempt to do so. LITHOGRAPHERS LOCAL ONE-L (METROPOLITAN LITHOGRAPHERS ASSN.) 911 question by stating: The answer to this question is still be- ing assembled. 13. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the thirteenth question by stating: See the answer to question 12. 14. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the fourteenth question by stating: See the answer to question 12. 15. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the fifteenth question by stating: See the answer to question 12. 16. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the sixteenth question by stating: See the answer to question 5. 17. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the seven- teenth question by stating: See the answer to question 12. 18. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the eighteenth question by stating: See the answer to question 12. 19.With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the nineteenth question by stating: Local One-L does not know the iden- tity of each individuals who participated in any way in the negotiations that led up to the agreement with Local One- L. In many instances, employers have individuals un- known to the union that play roles in formulating or cost- ing proposals. 20. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the twentieth question by stating: Having produced the agreement itself, it is irrelevant what proposals led up to it and it would ex- pose the bargaining strategies and process of Local One-L to produce this material in a manner that would be highly prejudicial to Local One-L in its upcoming negotiations with the MLA and its members. 21. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the twenty- first question by stating: See the answer to question 20. 22. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the twenty- second question by stating: Unknown. 23. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the twenty- third question by stating: Unknown. 24. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the twenty- fourth question by stating: Unknown 25. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the twenty- fifth question by stating: Unknown 26. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the twenty- sixth question by stating: Unknown. 27. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the twenty- seventh question by stating: Unknown. 28. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the twenty- eighth question by stating: This information is confidential and cannot be released without the consent of those em- ployees. 29. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the twenty- ninth question by stating: This information is confidential and cannot be released without the consent of those em- ployees. 30. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the twenty- second [sic] question by stating: This information is confi- dential and cannot be released without the consent of those employees. 31. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the thirty-first question by stating: This information is confidential and cannot be released without the consent of those employ- ees. 32. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the thirty- second question by stating: This information is confiden- tial and cannot be released without the consent of those employees. 33. With a full reservation of rights and without preju- dice to the foregoing, Local One-L answers the thirty-third question by stating: This information is confidential and cannot be released without the consent of those employ- ees. E. The Association’s Reply On May 31, Margolis sent a reply to Kennedy’s May 21 let- ter. After initially noting that the Union’s letter came more than 3 months after the Association’s initial February 13 request, Margolis asserted that, with the exception of paragraph 4 of the request, the Union’s response was substantively inadequate. The letter then sets forth the Association’s requests for further particulars, as set forth in pertinent part, below: With respects to paragraphs 1, 2 and 3, you fail to an- swer the question whether Local One-L accepts that the MLA companies are entitled under the Better Contracts provision of their agreement with Local One-L to imple- ment the more favorable terms of Local One-L’s March 30, 2006 agreement with Barton Printing, Inc. Please an- swer specifically whether the MLA members are or are not entitled to implement the terms of the Barton Printing, Inc. agreement. If Local One-L denies that the MLA member companies are entitled to implement the more favorable terms of the Barton Printing agreement, then please ex- plain the factual and contractual bases for this conclusion. With respect to paragraphs 5 and 6, your answers im- ply that Local One-L made no inquiries and took no other measures to determine the validity of the representations made by Barton Printing, Inc. regarding its corporate and business relationship with Barton Press, Inc. as set forth in Local One-L’s March 30, 2006 memorandum of agree- ment with Barton Printing, Inc. That is how the MLA un- DECISIONS OF NATIONAL LABOR RELATIONS BOARD 912 derstands your answers. Please confirm whether that un- derstanding is correct; and if it is not, please explain the inquiries made or other measures taken by Local One-L to determine the validity of the representations made by Bar- ton Printing, Inc. (To clarify what is meant by “meas- ures,” we use that word in the sense of were any inquiries made, documents examined or any other steps taken by Local One-L to learn whether the representations being made to it were true.) With respect to paragraph 7, you answered that the company is engaged in the business of “printing”; please specify whether Barton Printing, Inc. is engaged in the lithographic printing trade. With respect to paragraph 8, you assert that the re- quested information is known to the MLA and need not be repeated. To the contrary, the MLA is entitled to have the information from Local One-L for purposes of collective bargaining even if the information might be obtained elsewhere. Please provide the requested information, forthwith. With respect to paragraphs 9, 10, 11 and 22 through 27, you answered that the information is unknown to Lo- cal One-L. It is implausible in the extreme that Local One- L does not possess any of the requested information and materials. Assuming that Local One-L is innocent of such knowledge, we request that the information be provided immediately upon Local One-L learning any of what has been requested. With respect to paragraphs 12, 13, 14, 15, 17 and 18, you state that the requested information “is still being as- sembled.” We again note that your letter was sent more than three months after the information was requested. Your prolonged delay in “assembling” the information manifests a bad faith refusal to provide the requested in- formation. Without conceding that Local One-L has not yet made a good faith effort to comply with its obligations to provide the requested information, the MLA requests that Local One-L immediately forward to us whatever part of that information has so far been assembled in response to the MLA’s requests 12, 13, 14, 15, 17 and 18. The bal- ance of the information must be provided at the earliest possible date that it is assembled, and please give us the date that Local One-L expects to have this information as- sembled and provided to the MLA. With respect to paragraph 16, you reply by referring to your answer to question 5. We understand that answer to mean that Local One-L has made no inquiries of either Barton Press, Inc or Barton Printing, Inc. respecting the requested information. If this understanding is not correct, please explain the inquiries made or other measures taken by Local One-L to obtain this information and forward any available information to us forthwith. With respect to paragraph 19, you reply that Local One-L, “does not know the identity of each individual who participated in any way in the negotiations that lead [sic] up to the agreement with Local One-L. In many instances, employers have individuals unknown to the union that play roles in formulating or costing proposals….” [Em- phasis supplied in the original]. Your answer is evasive. The MLA did not request the identity of persons unknown to Local One-L; we requested the identities of those “who participated in the collective bargaining negotiations with the Union.” This plainly included those from Barton Print- ing, Inc. who met with or otherwise communicated with Local One-L, including counsel, in furtherance of any col- lective bargaining between those parties. For example, Lo- cal One-L presumably knows the identity of the two indi- viduals who signed the March 30, 2006 memorandum of agreement on behalf of Barton Printing, Inc. One of the two also signed the Barton Press memorandum of agree- ment with Local One-L on January 27, 2006 as “Presi- dent” of Barton Press, Inc. It would seem that this individ- ual is well known to Local One-L’s agents. Please provide us forthwith with the names and positions of all those known to Local One-L who have participated with it in collective bargaining on behalf of Barton Printing, Inc. With respect to paragraphs 20 and 21, you claim that the requested materials are subject to a privilege under the National Labor Relations Act for “negotiating strategies and process,” but you provide no authority for this propo- sition and we are aware of none. If you are aware of such legal authority, please city it forthwith. In the absence of such authority, please forward the requested information and materials to us immediately. With respect to paragraphs 28 through 33, you assert that the requested information “is confidential and cannot be released with the consent of those employees” about whom information was requested. You have provided no legal authority to support your assertion that this informa- tion is privileged from disclosure under the Act and we are aware of none. If you are aware of such legal authority, please cite it forthwith. In the absence of such legal au- thority, please provide us with the requested information immediately. Additionally, if there are legitimate grounds to consider any of the requested information in these para- graphs to be confidential, the MLA is willing to consider any appropriate protection for personal privacy and other legitimate confidentiality concerns. Please let us know what confidentiality protections Local One-L proposes and we will respond as may be needed. The letter concludes with the following statement: Local One-L’s dilatory response to our requests for informa- tion is unfairly delaying the MLS’s consideration of whether to pursue implementation or a contractual grievance relating to the Better Contracts provision of the MLA’s agreement with Local One-L. Therefore, the MLA requests that all the requested information not already provided by forwarded immediately. Under cross-examination, Cashman acknowledged that the MLA has not filed a grievance regarding the Union’s response to its request for information or the implementation of the Bet- ter Contracts provision of the Agreement; nor have the MLA members discussed doing so. The Union did not respond to the Association’s May 31 let- ter and other than what is contained in its letter of May 21, as LITHOGRAPHERS LOCAL ONE-L (METROPOLITAN LITHOGRAPHERS ASSN.) 913 described above, has provided no further information to the Association. F. Positions of the Parties The General Counsel contends that the Union has unlawfully failed to provide information which is necessary for, and rele- vant to, the enforcement of its Agreement with the Association. Specifically, for reasons discussed in further detail below, counsel for the General Counsel asserts that the Union has unlawfully failed to provide information pursuant to paragraphs 1–3, 5, 6, 8, 12–21, and 28–33 of the Association’s information request.6 The General Counsel maintains that the relevance of the requested documents would have been apparent to the Un- ion because of the Association’s disclosure of the reasons for and the purpose of the requested documents in its February 13 request. When the Union finally did respond, some 3 months later, it stated that the Union did not know some of the re- quested information, and those paragraphs are not at issue herein. For the balance of the Union’s response, it essentially issued the same answer to each question, objecting to the nature of the request itself.7 As outlined in its posthearing brief, Respondent argues that it complied with the Association’s information request. In sup- port of this position, Respondent takes issue with the reliance of the General Counsel on the premise that the obligations of an employer and a union with respect to the production of infor- mation are parallel. Citing no authority to support such a con- tention, Respondent argues that such reliance is misplaced where the employees of a different employer are involved.8 Respondent acknowledges that the collective-bargaining agreements a union has with other employers are presumptively relevant to administer a “most-favored nations” clause. Re- spondent contends, however, that the information sought by the Association is not presumptively relevant, and pursuant to the terms of the Agreement, it is required only to provide the Asso- ciation with the labor agreements it has with other employers. Respondent argues that its obligation to provide information under the Act is similarly constrained. In support of this con- tention, Respondent relies on Chicago Typographical Union 16 (Chicago Sun-Times), 296 NLRB 180 (1989), for the proposi- tion that where the right to obtain information rests on a most- 6 According to attachment A to the complaint, the General Counsel has deemed that the Union has sufficiently answered pars. 7, 9–11, and 22–27 of the Association’s request for information. 7 The Charging Party appears to argue that all the information sought is presumptively relevant; however, this is not the theory advanced by the General Counsel. It is well-settled that it is the General Counsel that controls the theory of the case and the administrative law judge cannot consider theories for violations argued by the charging party that substantially differ from the General Counsel’s. Zurn/N.E.P.C.O., 329 NLRB 484 (1999). In any event, as discussed in further detail below, in cases involving a suspected joint or single-employer or alter ego relationship, the relevance of such information must be shown. See, e.g., Proctor Mechanical Corp., 279 NLRB 201, 204 (1986); Bohemia, Inc., 272 NLRB 1128, 1129 (1984). 8 In a related argument, Respondent asserts that where, as here, the request for information is about employees outside the bargaining unit, there must be a showing that the requested information is relevant to “bargainable issues” and that, here, no such showing has been made. favored nations clause, it is the labor agreement itself which defines the scope of the obligation to produce, so the labor agreement itself must be construed to determine both the exis- tence of the obligation and its extent. As Respondent asserts, “[h]ere, the collective bargaining agreement mimics Board law and restricts the obligation to provide relevant information to produce only the collective bargaining agreements.” Respon- dent argues that, insofar as the Union complied with its obliga- tions under the Agreement and provided the Barton Printing MOA to the Association, neither the Agreement nor Board law requires anything further. Respondent further asserts that an inspection of the “inter- rogatories” contained in the MLA’s February 13 letter shows that they are contentious, argumentative and irrelevant. In par- ticular, Respondent argues that there was no showing that the information sought is needed to police the Association’s labor agreement or how it may relate to bargainable issues. Respon- dent additionally contends that, under the circumstances, the Better Contracts provision is not triggered insofar as the Barton Printing labor agreement contains terms that are identical to the terms found in the Association agreement or will soon become so. In the alternative, Respondent argues that insofar as Barton Printing is a new company, and its predecessor, APT was a nonunion company, the Barton Printing labor agreement falls squarely within the exception to the Better Contracts clause. Finally, Respondent argues that that the Association’s informa- tion requests seek information which would be of commercial advantage to it and contends that it is unenforceable inasmuch as it may violate the Sherman Act. In its answer to the complaint, Respondent has additionally raised a number of affirmative defenses, which are discussed in detail below.9 III. DISCUSSION A. Applicable Legal Standards A labor organization’s statutory duty to furnish information pursuant to Section 8(b)(3) of the Act is “commensurate with and parallel to an employer’s obligation to furnish it to a union pursuant to Section 8(a)(1) and (5) of the Act.” Teamsters Local 500 (Acme Markets), 340 NLRB 251, 252 (2003); Iron Workers Local 207 (Steel Erecting Contractors), 319 NLRB 87, 90 (1995); see also Fireman & Oilers Local 288 (Diversy Wyandotte), 302 NLRB 1008, 1009 (1991). The duty to provide information applies to information relevant to the policing or administration of a collective-bargaining agreement, including determinations of whether to file a grievance, and whether to 9 In sum, these affirmative defenses are that the allegations of the complaint are time barred by Sec. 10(b) of the Act; that the unfair labor practice charge is pre-empted by the collective-bargaining agreement providing that all disputes rising under the Better Contracts provision be submitted to arbitration; that certain requests are contention-type interrogatories that are disfavored under the Federal Rules of Civil Procedure; that certain requests demand that the Union identify infor- mation which is irrelevant to the collective-bargaining process; and that certain paragraphs of the demand for information seeks material that is confidential. Respondent has additionally argued that the information requests are burdensome and Respondent has refused to cooperate in reducing its demand to a more intelligible form. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 914 proceed to arbitration. Washington Beef, Inc., 328 NLRB 612, 617–618 (1999); Bacardi Corp., 296 NLRB 1220, 1222–1223 (1989), Chesapeake & Potomac Telephone Co., 259 NLRB 225, 227 fn. 7 (1981), enfd. 687 F.2d 633 (2d Cir. 1982). Rele- vance is assessed by using a liberal “discovery-type standard.” NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967). Information pertaining to the terms and conditions of em- ployment of the bargaining unit is presumptively relevant, and must be provided on request, without need on the part of the requesting party to establish specific relevance or particular necessity. Iron Workers Local 207 (Steel Erecting Contrac- tors), above at 91 (and cases cited at fn. 8). However, requests for information concerning matters outside of the bargaining unit require a demonstration of relevance. Shoppers Food Warehouse Corp., 315 NLRB 258, 259 (1994); Ohio Power Co., 216 NLRB 987, 991 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976). A party has satisfied such a burden when it demonstrates a reasonable belief supported by objective evidence for request- ing the information. In determining the relevancy of the re- quested information, the burden is not an exceptionally heavy one, requiring only that the desired information is relevant and that it would be of use to the party in carrying out its statutory duties and responsibilities. Certco Distribution Centers, 346 NLRB 1214, 1215 (2006); Shoppers Food Warehouse, supra at 259. Generally, the Board has recognized that an employer is rea- sonably entitled to monitor a union’s compliance with its col- lective-bargaining agreement and, in this regard, has further held that the existence of a “most-favored nations” clause es- tablishes both the necessity and relevance of information re- garding the agreements that a union has with other employers, to insure that nonassociation members are not obtaining a com- petitive advantage. A union’s refusal to furnish such informa- tion violates Section 8(b)(3) of the Act. Electrical Workers Local 292 (Sound Employers Assn.), 317 NLRB 275, 275–276 (1995), citing Teamsters Local 272 (Metropolitan Garage), 308 NLRB 1132, 1133–1134 (1992); Service Employees Local 144 (Jamaica Hospital), 297 NLRB 1001, 1002 (1990). When requests for information are made regarding suspected alter ego, joint or single-employer relationships and involve information regarding the wages and terms and conditions of employment of employees who are outside the contractually defined bargaining unit, the requesting party bears the burden of establishing the relevance of the information. Reiss Viking, 312 NLRB 622, 625 (1993); Pulaski Construction, 345 NLRB 931 (2005); Dodger Theatricals Holdings, 347 NLRB 953, 966 (2006). B. Application to the Instant Case In applying these principles to the instant case, the first issue to be determined is whether the General Counsel has shown that Association had a sufficiently reasonable belief based on objective facts that the relationship between Barton Printing and Barton Press might privilege it to invoke the “Better Con- tracts” clause of the Agreement. Generally, in evaluating whether such a burden has been met, the Board does not pass on the merits of a contractual claim. Dodger Theatricals, supra at 15; Certco Distribution Center, supra at 2; Shoppers Ware- house, supra at 259. Accordingly, I need not decide whether the MLA is, in fact, entitled to invoke the remedial provisions of the Better Contracts clause in evaluating whether it had a reasonable basis for its information request. As noted above, the Better Contracts clause has an exception for employers that have not previously had a collective- bargaining agreement with the Union. Thus, the relationship of Barton Printing, an allegedly new employer, to Barton Press, a company which is already a signatory to an agreement with the Union, becomes central to a determination of whether the MLA members are entitled to the benefit of Barton Printing’s more favorable contract terms. In this case, I find as an initial matter that, notwithstanding Barton Printing’s stated commitment to maintaining a separate corporate identity, the MOA in and of itself gives rise to a number of objective factors which would tend to support a reasonable belief that there is a possible single or joint employer or alter ego relationship between the two companies: the similarity of company names, the contractual assertion that Barton Printing “shares or will share in the near future a common owner with Barton Press,” as well as the fact the that the two companies apparently are in the same industry. Here, the Association additionally ascertained that that the Barton Printing MOA contained terms that were more favor- able to that company, possibly providing it with a competitive advantage. The MLA then undertook an examination of the EarthColor internet site, and came to believe that both Barton Printing and Barton Press were operating under EarthColor. To the extent that the information relied on by the Association was derived from what was characterized by Respondent as “hear- say” sources, the Board has made clear that such evidence can be considered in establishing “reasonable belief.” See Dodger Theatricals, supra at 967; Contract Flooring Systems, 344 NLRB 925, 928 (2005); Cannelton Industries, 339 NLRB 996, 1005 (2003).10 Thus, I find that the Association had a reasonable basis for believing that it might be entitled to implement the more favor- able terms in the Barton Printing contract in the event that company was sufficiently related to Barton Press to make the exception to the Better Contracts clause inoperable. This as- sumption was later further confirmed by anecdotal evidence from one employee that the Barton Printing and Barton Press operations had substantial interchange in terms of equipment, employee complement and management. While this level of investigation may not have been extensive it was, in my opin- ion, sufficient to form a basis for the Association’s reasonable belief that there might exist a single or joint employer or alter ego relationship between the two companies. The General Counsel argues that the purpose of the Associa- tion’s information request would have been apparent to the 10 In fact, several cases make clear that it is not necessary that the factors relied on be shown to be accurate or even ultimately reliable. See, e.g., Public Service Electric & Gas Co., 323 NLRB 1182 (1997); Electrical Energy Services, 288 NLRB 925, 931–932 (1988). Further, although Respondent objected to the admission of this evidence as hearsay, technically speaking it was neither offered not accepted for the truth of the matter asserted, but only in connection with the Associa- tion’s reasonable belief based on the information that it received. LITHOGRAPHERS LOCAL ONE-L (METROPOLITAN LITHOGRAPHERS ASSN.) 915 Respondent, and I agree. In this regard, the MLA specifically stated that the purpose of the information request was to enable it to evaluate the parties’ rights and obligations under the Better Contracts clause. Additionally, the totality of the circumstances surrounding the request, coupled with the other contentions made in the Association’s February 13 and May 31 letters were sufficient to place the Union on notice of a relevant purpose for the information.11 The sufficiency of the request should not be judged from the request itself, but in light of the entire pattern of facts available to the party. See Ohio Power Co., 216 NLRB 987, 990 fn. 9 (1975).12 C. The Scope of Respondent’s Obligation to Respond to the Information Requests I reject Respondent’s contention that it satisfied its obliga- tion to provide information to the Association by providing it with the Barton Printing MOA. As Board law makes clear, a party’s obligation to provide relevant information is not limited to that which is deemed presumptively relevant. Information that is not presumptively relevant may, in fact, have “an even more fundamental relevance than that considered presump- tively relevant.” Prudential Insurance Co. of America v. NLRB, 412 F.2d 77, 84 (2d Cir. 1969). Respondent’s reliance on Chi- cago Typographical Union 16 (Chicago Sun-Times) supra, is misplaced. In that case, the Board found that the existence of a most-favored nations clause “creates a duty on the part of the [respondent union] to disclose information concerning wages, hours, and other terms and conditions of employment at the [requesting party’s] principal competitor.” The Board did not find, however, that a respondent’s obligation was specifically limited to such information. More importantly, the situation considered by the Board therein did not concern itself with an alleged single or joint employer or alter ego relationship, as is the case here. I additionally reject Respondent’s contention that the Agreement defines and limits the scope of its obligation to provide information under the Act to providing collective- bargaining agreements it has entered into with other employers. The duty to furnish information is a statutory obligation which exists independent of any agreement between the parties. American Standard, 203 NLRB 1132 (1973). The Board and the courts have held that a contract provision enti- tling a party to certain specific information will not be found to constitute a waiver of that party’s right to receive other relevant information, unless such a waiver is expressly stated in the agreement. Mt. Sinai Hospital, 331 NLRB 895, 911 (2000); Bozzuto’s, Inc., 275 NLRB 353, 358 (1985); Standard Oil v. NLRB, 399 F.2d 639, 642 (9th Cir. 1968). See generally Metro- politan Edison Co. v. NLRB, 460 U.S. 693 (1983) (waiver of statutory rights evaluated under “clear and unmistakable” stan- dard). 11 In this regard, I note that Respondent has not asserted that it the Association did not articulate the reason behind the information re- quest. 12 In any event, the purpose of the information request was made clear to the Union at the hearing. See Pulaski Construction Co., supra at 932. Accordingly, I conclude that Respondent’s argument that it was not required to provide the Association with material other than the Barton Printing MOA is without merit. Neither Board law nor the express terms of the Agreement privilege Respon- dent to take such a position. 13 As noted above, I do not pass on the merits of any claim that Barton Printing and Barton Press are single or joint employers or have an alter ego relationship, or whether the Association would be entitled to avail itself of a remedy under the Better Contracts clause. I do find, however, that the Association is entitled, under the liberal discovery-type standard that applies here, to the information which the Association has shown is relevant to the enforcement of its collective-bargaining agree- ment with the Union, and, more particularly, whether it is enti- tled to seek the remedies provided for in the Better Contracts clause. Thus, I find that the information sought by paragraphs enumerated 8, 12–16, 18–21, and 28–33 is all relevant to evalu- ating whether Barton Printing or Barton Press share equipment, customers, salespersons, supervisors, managers, employees, owners, collective-bargaining agents, delegates, or shop stew- ards. This is precisely the sort of information that has been ordered to be produced by the Board in connection with claims of suspected joint or single-employer or alter ego status. Pu- laski Construction Co., supra at 939–942; Contract Flooring Systems, supra at 930–933; Gary’s Electrical Service Co., 326 NLRB 1136, 1143–1145 (1998). Further, section 4D of the MOA references an agreement be- tween APT and the Union without providing the actual contrac- tual terms. Paragraph 17 is a request for the clarification of the terms and conditions of employment agreed to in section 4D of the MOA. This is, therefore, information that the Union has conceded that it is required to provide. I additionally find, however, that the General Counsel has painted with too broad a brush in contending that Respondent was obliged to provide information as it relates to certain para- graphs of the MLA’s information request. In particular, I find that the General Counsel has failed to prove that the MLA has demonstrated the relevancy of paragraphs 1, 2, 3, 5, and 6 of its information request. Respondent raises a specific affirmative defense with regard to paragraphs 1, 2, and 3 in its February 13 letter, asserting that they require the Union to “characterize which facts are suppor- tive of the Union’s contentions” and that “[s]uch contention type interrogatories are disfavored under the Federal Rules of Civil Procedure and have no place in labor relations.” Both the General Counsel and the Association, relying primarily on Or- met Aluminum Mill Products, 335 NLRB 788 (2001), argue that 13 As an evidentiary matter, I reject Respondent’s argument that the Better Contracts provision of the Agreement was not triggered insofar as the Barton Printing MOA contained terms that were identical to the Agreement or would soon become so. As for Respondent’s additional contention that the Barton Printing MOA falls squarely within the exception to the Better Contracts clause, such an argument goes to the merits of any such claim by the Association, not to whether there is a reasonable objective basis for its information request. As discussed above, whether or not the Association would ultimately prevail in this regard is not relevant to the inquiry herein. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 916 the Board has held that valid requests for information may be posed in interrogatory form. The mere fact that a party asks questions that require a narra- tive response does not, in and of itself, diminish the potential relevance of the requested information. The Board and the courts have ordered parties to answer narrative questions in a number of cases.14 In my view, however, there is a distinction between the type and manner of interrogatory questions at issue in the authority cited by the General Counsel and the Association and those set forth in paragraphs 1, 2, and 3 of the February 13 letter. Merely labeling such questions as “interrogatories” which are permitted by the Board elevates form over substance in this instance. The relevant paragraphs demand that the Union provide the Association with its “contentions” about whether the MLA is not entitled to implement the more favorable terms of the Bar- ton Printing Agreement, to identify the contractual basis for such contentions and set forth each and every fact which sup- ports such a contractual basis. These questions, taken as a whole, do not ask for information: they demand theories of contractual interpretation, or possibly seek to require Respon- dent to articulate the legal theories and defenses which might be presented to an arbitrator should the Association seek to invoke its rights under the Better Contracts clause or in the event a grievance were to be filed with regard thereto.15 In my view, the General Counsel has failed to establish that the Respondent has a statutory duty to respond to inquiries of this sort. The authority relied on by the General Counsel and the Association does not compel such a result. For example, in Ormet, supra, the employer was asked to identify specific facts regarding equipment, skills and manpower to support its deci- sion to subcontract work. Similarly, in Genovese & Didonno, Inc., 322 NLRB 598, 598 fn. 4 (1996), cited by the Association, the information request at issue concerned the employer’s op- eration of a nonunion company. It consisted of 79 two-part questions: the first asked about an aspect of the respondent’s business, and the second part asked the identical question about the suspected nonunion company operated by the respondent. To the extent the nature of the information request is explicated by the administrative law judge, it appears that the respondent therein was asked to produce specific factual information within its control.16 14 In addition to the cases cited above see also Cornerstone Masonry Constructors, 343 NLRB 971 (2004) (alter ego case; 77 questions, which required the respondent to describe the alleged alter ego busi- nesses, their personnel and administrative characteristics and their respective geographic locations); Gary’s Electrical Service Co., supra at 1143–1145 (same); Proctor Mechanical Corp, supra at 203 (27 ques- tions regarding a possible “double-breasted” operation). 15 I note that par. 3 asks for “specific facts” which might be suppor- tive of the Union’s contention that the MLA is not entitled to invoke the Better Contracts provision. I find, however, that this request is inextricably linked to pars. 1 and 2, which I deem to be improper. I additionally find that the other enforceable requests in the February 13 letter, which is comprehensive in its scope, would provide the Associa- tion with the information it seeks in this regard. 16 A&M Trucking, Inc., 314 NLRB 991, 993 fn. 8 (1994), also cited The Union has a statutory duty to provide the Association with information within its possession which relates to the en- forcement of the Agreement. Neither the General Counsel nor the Association have pointed to any authority which holds that a party has a corresponding duty to provide a statement of posi- tion, explicate its legal theories or to create them upon demand. Moreover, the General Counsel has advanced no argument as to how discerning the “contentions” of the Union with regard to whether the MLA is entitled to invoke the Better Contracts clause would be of any relevance to or assist the MLA in en- forcing its rights under the Agreement. Nor, in my view, would one be apparent to the Respondent. Clearly, the MLA could seek to invoke its rights under the Better Contracts clause irre- spective of any “contentions” held by the Union about its right to do so. Thus, one could argue that such contentions are irrele- vant. Accordingly, I find that the Union did not violate the Act by failing and refusing to further respond to paragraphs 1–3 of the Association’s February 13 letter. I further find that the General Counsel has failed to demon- strate the relevancy of paragraphs 5 and 6 of the Association’s information request. These inquiries require the Union to “de- scribe the measures if any taken by the Union” to ascertain the accuracy of the representations in the MOA that Barton Print- ing is a “separate independent employer,” that it is operated independently from Barton Press, and similarly to “describe the measures” undertaken by the Union to determine whether Bar- ton Printing has complied with its commitment to maintain “a separate corporate integrity.” In Iron Workers Local 207 (Steel Erecting Contractors), 319 NLRB 87, 91 (1995), relied on, for differing reasons, by all parties herein, the Board found that the union had violated Sec- tion 8(b)(3) by failing and refusing to provide certain informa- tion as requested by the employer. In so doing, the Board noted that: “[R]equests for information relating to persons outside the bargaining unit require a special demonstration of relevance.” The Board went on to find that: Insofar as the information request pertains to employ- ees outside the bargaining unit (i.e., employees of non- Association employers who are nevertheless signatory to or bound by the collective-bargaining agreement), we find that the specific provisions of the collective-bargaining agreement establish the relevance of the Association’s in- quiry. Under article 1, the Respondent is obligated to insist on the enforcement of contractual terms with respect to non-Association employers. . . . The Association is rea- sonably entitled to monitor the Respondent’s compliance with the above obligations so that the Association may at- tempt to ensure that non-Association employer and con- tractors are not obtaining a competitive advantage by pay- ing apprentices less than contractual wage rates or benefit amounts. by the Association, is inapposite. The respondent therein did not dis- pute that the requested information was relevant and necessary to the performance of the union’s representational duties. The issue presented to the Board in that instance was whether the contract at issue was a members-only contract. LITHOGRAPHERS LOCAL ONE-L (METROPOLITAN LITHOGRAPHERS ASSN.) 917 Thus, while the terms of a collective-bargaining agreement cannot, absent a clear and unmistakable statement of intent, be construed as a waiver of a party’s statutory right to information, the scope and nature of the information to which a party is enti- tled is framed by the parties’ contractual undertakings. See also Chicago Typographical Union 16, supra at 186. Here, the Bet- ter Contracts clause contains a provision regarding the circum- stances under which the MLA may implement more favorable contract terms. Thus, the Agreement contemplates that the As- sociation would have access to such information as would en- able it to determine whether or not it is entitled to that contrac- tual remedy. In its brief, General Counsel argues that paragraphs 5 and 6 are “relevant in determining whether the Union is in possession of any evidence that Barton Printing is unrelated to Barton Press, and whether the Union has received any evidence since that contract was signed with Barton Printing that this relation- ship remains the same.”17 In my view, this misapprehends the nature of the information sought by these paragraphs. Indeed, had the Association asked such questions as they have been described by the General Counsel, such inquiries might well be found to be relevant. However, paragraphs 5 and 6 do not ask for evidence within the Union’s possession regarding the rela- tionship between Bargon Printing and Barton Press, rather they require the Union to describe “measures” it has taken to ascer- tain the accuracy and veracity of certain representations made by Barton Printing as set forth in the MOA.18 I find that the General Counsel has failed to show how information regarding certain actions taken (or not taken) by the Union is relevant to contract administration or enforcement. To the contrary, paragraphs 5 and 6 go beyond what is re- quired to administer and enforce the Agreement between the Union and the Association as it is written. In particular, there is no affirmative contractual obligation upon the Union to take measures to monitor compliance as regards its collective- bargaining agreements with other employers, or to disclose such compliance or noncompliance to the Association. By con- trast, in Iron Workers Local 207, supra, the respondent union had a delineated contractual obligation to insist on the enforce- ment of contractual terms with respect to nonassociation em- ployers. Thus, as the Board found, the respondent had an obli- gation to provide information which would enable the employer association therein to monitor compliance with that specific contractual commitment. See also Electrical Workers Local 292 (Sound Employers Assn.), 317 NLRB 275, 276 fn. 2 (1995), where the respondent union had a contractual obligation “immediately notify” the multiemployer association of better terms granted in the relevant industry. Moreover, the General Counsel has failed to demonstrate how information regarding “measures . . . undertaken by the 17 Similarly, in its brief, the Association contends that these requests seek information that the Union learned in determining that the two companies are separate employers. 18 In its May 31 letter, the Association specified that, by the term “measures” it was seeking information regarding “inquiries made, documents examined or any other steps taken by Local One-L to learn whether the representations being made to it were true.” Union” with respect to investigating the relationship between Barton Printing and Barton Press would assist the Association in enforcing the Better Contracts clause. Further, neither the General Counsel, nor the Association, has pointed to the exis- tence of a contractual remedy available to the Association for any purported Union failure to take such measures. Accord- ingly, I find that the General Counsel has not shown that the information sought by paragraphs 5 and 6 is relevant and nec- essary to contract administration, and I therefore conclude that Respondent did not violate the Act by failing and refusing to answer these inquiries. D. Respondent’s Affirmative Defenses Respondent has also posed certain affirmative defenses to the allegations of the complaint. It is well established that the burden of proof of establishing an affirmative defense lies with the party advancing it. Marydale Products Co., 133 NLRB 1232 (1961); Sage Development Co., 301 NLRB 1173, 1189 (1991). In sum, I find that Respondent has failed to meet its burden of proof with respect to its affirmative defenses, as dis- cussed below. 1. The 10(b) statute of limitations Respondent first asserts that the allegations of the charge are time barred by Section 10(b) of the Act because the Associa- tion’s “requests for information began in 2005.” Respondent did not specifically adduce any evidence in support of this claim at the hearing and, further, did not address this issue in its brief. Nevertheless, this affirmative defense has not been with- drawn, and inasmuch as it was incorporated in Respondent’s answer, has been timely raised. DTR Industries, 311 NLRB 833, 833 fn. 1 (1993), enfd. denied 39 F.3d 106 (6th Cir. 1991) (Sec. 10(b) defense waived when not pleaded as an affirmative defense in the answer or litigated at the trial.). Accordingly, I will address Respondent’s contentions in this regard.19 The instant charge, filed on February 5 and served on Febru- ary 8, alleges that the Union violated Section 8(b)(3) of the Act because it had: “failed and refused to provide the [MLA] with requested information about other employers having collective- bargaining agreements with Local One.” While the parties ap- pear to be in agreement that the 2005 request referred to by Respondent in its affirmative defense was the request for a copy of the “Earth Color/Barton Kashen/APT Agreement”; that precise issue was not litigated in the context of this case. In any event, the Association’s request for collective-bargaining agreements was apparently not satisfied until February 2, 2007. Respondent’s reply to this initial demand is, however, not the subject of the instant complaint. Rather, the alleged unlawful conduct concerns itself exclusively with the Union’s response to the Association’s February 13 letter. Thus, in this case, the 19 Counsel for the General Counsel did not address this issue either at the hearing or in its brief. The Association, citing Nickles Bakery of Indiana, 296 NLRB 927, 928 (1989), argues that the allegations of the charge are not time barred inasmuch as the issues under consideration postdate the charge, and that the complaint amends the charge to the extent necessary so long as the new matters alleged are closely related to the scope of the charge. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 918 Union’s alleged refusal to provide the requested information came after the filing and service of instant charge. Initially, it is noted that a charge is not a pleading and does not require the specificity of a pleading. It merely serves to initiate a Board investigation to determine whether a complaint should issue. NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959). The complaint is not restricted to the precise allegation of the charge. So long as there is a timely charge, the complaint may allege any matter closely related to, or growing out of, the controversy which produced the charge, or which relates back to or defines the charge more precisely. Fant Milling Co., supra at 307, 309; National Licorice Co. v. NLRB, 309 U.S. 350, 369 (1940). In addition, I note that the Board has allowed the General Counsel to pursue charges based on activity that occurred within the 10(b) period, where such activity stemmed from conduct that occurred more than 6 months before the charge was filed. In Iron Workers Local 433 (Steel Fabricators Assoc.), 341 NLRB 523 (2004), the respondent union first in- formed the charging party in August 1999, more than 6 months before he filed his charge, that any dues payments he made would be applied to his outstanding fine balance. While a viola- tion based on that statement would have been time-barred, the union engaged in other unlawful conduct (i.e., reiterating that it would apply any dues payments to the charging party’s fine balance and threatening to suspend him and refusing to allow him to work if he did not pay his dues) within the 10(b) period. Applying this analysis to the instant case, the Union’s refusal to provide information in response to the Association’s February 13 request may properly be the subject of a complaint notwith- standing any relationship it may have to other conduct occur- ring in 2005, a period which is apparently outside the limita- tions period. The instant case, however, differs from the cir- cumstances in Iron Workers Local 433, supra, in that the opera- tive events giving rise to the instant complaint did not occur until after the charge was filed. In various other contexts, the Board has held that events that postdate a charge may be included in a complaint where they are violations of a kind that are “closely related” to those al- leged in a prior timely charge. For example, in Redd-I, Inc., 290 NLRB 1115, 1115–1116 (1988), the Board dealt with alle- gations in a complaint amendment that were not described in the underlying charge. In applying the “closely related” test set forth in Redd-I, supra, the Board looks at: (1) whether the new allegation involves the same legal theory; (2) whether the new allegation arises from the same factual circumstances of se- quence of events; and (3) whether the respondent would raise the same or similar defenses to both allegations. See also Nick- les Bakery of Indiana, supra at 927–928 (applying similar relat- edness tests to allegations in initial complaints). Here, the charge alleged that the Union violated Section 8(b)(3) of the Act because it had: ”failed and refused to provide [the Associa- tion] with requested information about other employers having collective-bargaining agreements with Local One.” Thus, the allegations of the charge and those set forth in the complaint are essentially one and the same. Respondent has cited no authority for the proposition that unlawful conduct occurring subsequent to the filing of a charge, which is closely related to the subject matter of that charge, cannot properly be the subject of a com- plaint.20 Accordingly, I find that Respondent has failed to meet its burden of proof to establish that the allegations of the com- plaint are barred by Section 10(b) of the Act. 2. Deferral to the grievance-arbitration process Respondent further contends that the instant dispute is pre- empted by the parties’ collective-bargaining agreement and should be deferred to arbitration under the principles of Collyer Insulated Wire, 192 NLRB 837 (1971). While Respondent has recognized the Board’s general policy of nondeferral to arbitra- tion in information cases, it argues that under the specific facts of this case, deferral would be appropriate. In particular, Re- spondent cites to subparagraph (b) of the Better Contracts clause which provides that “[a]ny dispute arising under this provision shall be submitted to arbitration in accordance with the arbitration provisions of this agreement.” In its brief, Re- spondent argues that this is a “de facto waiver” by the MLA of any opportunity to invoke anything other than the grievance and arbitration provisions of the Agreement if there is a dispute over the Better Contracts clause. Respondent further relies upon subparagraph (c) of that provision which provides that, “[o]n request of the Association the Union shall exhibit to its desig- nated representative of the Association any collective bargain- ing agreements between the Union and any employer or em- ployers.” According to Respondent, that is the “sum and sub- stance” of the affirmative obligation imposed upon the Union in connection with the better contracts clause—produce the con- tract or contracts at issue. As an initial matter, I find that there is no “de facto waiver” of the MLA’s right to seek information necessary and relevant to the enforcement of the Agreement or of its right to seek re- course before the Board with respect to such matters. As dis- cussed above, it is well-settled that any such waiver of statutory rights must be in express terms, and must be in clear an unmis- takable language. Metropolitan Edison Co. v. NLRB, 460 U.S. at 708; United Technologies Corp., 274 NLRB 504, 507 (1985). Here, Respondent can point to no such language. As noted above, Respondent relies on the fact that the Agreement mandates that it provide the Association with copies of collec- tive-bargaining agreements with other employers. As has been discussed previously herein, the Board has held that a contract clause stating that a party is entitled to certain specific informa- tion is not a waiver of that party’s right to receive other relevant information. Mt. Sinai Hospital, supra; Bozzuto’s, Inc., supra. Accordingly, as Respondent’s “de-facto waiver” argument has been rejected by the Board and the Supreme Court, I do not find any such waiver of the Association’s statutory right to information here. With regard to Respondent’s deferral argument more gener- ally, the Board has “a longstanding policy of nondeferral to arbitration in information request cases.” Shaw’s Supermarkets, 20 In addition to allowing postcomplaint amendments to allege mat- ters not described in the underlying charge, the Board has also allowed the General Counsel to add complaint allegations contained in a previ- ously dismissed charge. See Sonicraft, Inc. v. NLRB, 905 F.2d 146, 148–149 (7th Cir.1990), cert. denied 498 U.S. 1024 (1991). LITHOGRAPHERS LOCAL ONE-L (METROPOLITAN LITHOGRAPHERS ASSN.) 919 339 NLRB 871 (2003). I note that several recent Board mem- bers have indicated in dissenting or concurring opinions that they would consider deferral of information requests under certain circumstances; however, in reviewing the positions taken by members of the Board regarding this issue, I find in- adequate support to presume that a Board majority would con- sider deferral to be appropriate in the instant case. In this re- gard, I note that neither the contractual grievance arbitration clause nor the Better Contracts clause contain a specific refer- ence to disputes arising regarding requests for information; nor is any dispute under the Better Contracts clause currently be- fore an arbitrator.21 I therefore find no reason, or support in Board law, to depart from longstanding Board policy in this instance. 3. Confidential nature of the information Respondent further argues that paragraphs 5, 6, and “others such as 18 through 21” require the disclosure of confidential, proprietary information that the Union has taken to enforce its collective-bargaining agreements, disclosure of which would be harmful to the Union and its members.22 Under Board law, a party may refuse to furnish confidential information to the other party under certain conditions. The objecting party must show that it has a legitimate and substan- tial confidentiality interest in the information sought. Northern Indiana Public Service Co., 347 NLRB 210, 211 (2006). If such a showing is made, the Board must weigh the objecting party’s interest in confidentiality against the requesting party’s need for the information, and the balance must favor the party asserting confidentiality. Even if these conditions are met, however, the objecting party may not simply refuse to provide the requested information, but must seek an accommodation that would allow the requesting party to obtain the information it needs while protecting the objecting party’s interest in confi- dentiality. Indiana Public Service Co., supra. The Board has defined confidential information, which could in certain circumstances, give rise to a valid confidentiality claim, justifying a refusal to turn over information as follows: 21 See, e.g., Team Clean, Inc., 348 NLRB 1231, 1231 fn. 1 (2006), where Members Schaumber and Kirsanow state that they would view the information request therein as encompassed by the parties’ arbitra- tion clause, and would defer, but in the absence of a majority to reverse Board precedent, they agreed to apply current Board law. Chairman Batista’s concurrence in that case demonstrates that, in his view, the fundamental prerequisite for deferral to arbitration is that the issue be arbitrable. A general arbitration clause covering disputes over interpre- tation, application and compliance with a collective-bargaining agree- ment does not contain a specific provision as to information requests. In such circumstances, Chairman Batista finds that the issue is not arbitra- ble, and would not defer. By contrast, in SBC California, 344 NLRB 243, 243 fn. 3 (2005), Chairman Batista and Member Schaumber would have deferred the union’s request, however there the arbitration clause contained specific procedures relating to requests for information. In that instance, in the absence of a Board majority to overrule extant Board law, the Board found that the administrative law judge correctly applied the Board’s policy of nondeferral in information cases. 22 For the reasons discussed above, I have concluded that the Re- spondent is not required to respond to pars. 5 and 6 of the Association’s information request. Confidential information is limited to a few general categories that which reveal, contrary to promises or reasonable expecta- tions, highly personal information, such as individual medical records, or psychological test results; that would reveal sub- stantial proprietary information, such as trade secrets; that which reasonably be expected to lead to harassment or retalia- tion, such as the identity of witnesses; and that which is privi- leged, such as memoranda prepared for pending lawsuits. Detroit Newspaper Agency, 317 NLRB 1071, 1071 (1995). Here, in its May 21 letter, the Union, without more, made a blanket assertion the information sought was confidential, and could not be released. There was no particularized demonstra- tion of why such information would “trigger specific confiden- tiality concerns.” Mission Foods, 345 NLRB 788, 792 (2005). Nor was there any attempt to seek an accommodation from the Association that would allow the disclosure of some informa- tion, while protecting the confidentiality interests involved. Id. I conclude, therefore, that that the Union’s bald claim that the information request seeks material that is confidential does not excuse the Respondent’s failure to comply with the request. Respondent further argues that paragraphs 28–33 demand in- formation that is “irrelevant or confidential in the administra- tion of this collective-bargaining agreement” and, moreover, that “there is nothing that is dependent upon the identity of the employees in the bargaining unit.” Such an argument, of course, overlooks the importance of interchange of employees as a factor in determining whether two ostensibly separate op- erations are, in fact, somehow related to one another. Respon- dent has failed to cite any authority to convince me that in cir- cumstances involving suspected single or joint employer or alter ego status, the identity of employees has been deemed confidential. In fact, in similar contexts, the Board has directed that such information be produced. Gary’s Electrical Service Co., supra at 1145; Electrical Energy Services, supra at 933– 936; Proctor Mechanical, supra at 203. Accordingly, Respondent’s affirmative defense of confiden- tiality as it applies to paragraphs 5, 6, 18–21, 28–33, or any of the other requests for information contained in the Associa- tion’s February 13 letter is rejected. 4. Other affirmative defenses Respondent further argues that requests 12, 13, 14, 15, and 16 are not proper insofar as (1) they demand the identification of information which would be of commercial use to Barton Press’ competitors; (2) the Respondent does not know all of the information requested; and (3) Respondent does not have an obligation to sort through a voluminous demand for informa- tion to determine if some of it is relevant. In support of this argument, Respondent contends that it requested that the Asso- ciation review its information demand and reduce it to a “more intelligible form” but they refused. a. Anticompetitive nature of the request Respondent’s apparent assertion that the Association’s true purpose in seeking the information is to obtain information to be put to use against its competitors was, in the first instance, not supported by the evidence adduced in the record with re- gard to this issue. In particular, during cross-examination, DECISIONS OF NATIONAL LABOR RELATIONS BOARD 920 Cashman testified, without contradiction, that he most often does not know who is bidding against him on any particular contract; thus, information regarding Barton Press and Barton Printing would not necessarily be of assistance to him in fram- ing a bid or in providing his company with a competitive ad- vantage. Moreover, even if I were to assume that the Associa- tion could put such information to competitive advantage, this by itself does not negate the Union’s obligation to furnish oth- erwise relevant information. Electrical Workers Local 292 (Sound Employers Assn.), 317 NLRB 275, 276 (1995) (“It is well settled that where a party requests information that is rele- vant to that party’s collective-bargaining needs, it is irrelevant that there may also be other reasons for the request or that the information may be put to other uses”); Central Manor Home for Adults, 320 NLRB 1009, 1011 (1996) (and cases cited therein). In arguing that the Association is seeking this information to gain a competitive advantage over its competitors, Respondent notes that the evidence establishes that no grievance has, to date, been filed or discussed among Association members. While it is true that the Board has fashioned an exception to the general “discovery” standard set forth in NLRB v. Acme Indus- trial, 385 U.S. at 437, this is limited to circumstances where it can be shown that the requesting party clearly does not intend to use the information for purposes of collective bargaining. See, e.g., Coca Cola Bottling Co. of Chicago, 311 NLRB 424, 425 (1993) (employer not obliged to furnish information on retirement benefit costs where it was demonstrated that union’s purpose in requesting information was to communicate it to competitors, not to fulfill any bargaining responsibilities with the employer); WXON-TV, Inc., 289 NLRB 615 (1988) (union not entitled to information that was “akin to a discovery de- vice” pursuant to its pursuit of unfair labor practice charge rather than its statutory duties as collective bargaining represen- tative). In this case, however, the Respondent, who bears the burden of proof as to such issues, has failed to make such a showing. To the contrary, the General Counsel has shown that the Association had reasonable, objective basis for requesting the information, and it is not necessary for the Association to have filed or to have active plans to file a grievance prior to receiving it. NLRB v. Acme Industrial, supra at 438. In a related argument, set forth in its posthearing brief, Re- spondent has asserted that requiring it to disclose information to the Association regarding its competitors may violate the Sherman Act. I find this defense to be without merit. Initially, as noted above, the only testimonial evidence adduced estab- lished that the disclosure of the information sought would not necessarily provide the MLA with a competitive advantage Moreover, even if I were to assume that the information would, in fact, be of some commercial use to the MLA, there is no evidence that it would have eliminated competition on all sub- jects such as to give rise to an antitrust violation. Moreover, as Board law makes clear, I am not empowered to make such a determination in any event. In Dolly Madison Industries, 182 NLRB 1037 (1970), the Board held that a most-favored nations clause was a mandatory subject of bargaining and not a violation of the antitrust laws. Thereafter, in Bartenders Union Local 355 (Doral Hotel), 245 NLRB 774 (1979), the Board held that the union therein was not excused from providing its union contract with one hotel to a competitor hotel on the grounds that it would constitute an antitrust violation. In that case, the Board stated: Absent a determination by a tribune of competent jurisdiction that the relevant [most favored nations] clause is unlawful un- der the antitrust laws, we will not find that Respondent was privileged under the antitrust laws to ignore its contractual ob- ligation to provide information necessary to administer the [most-favored nations] clause. Subsequently, in Teamsters Local 272 (Metropolitan Ga- rage), 308 NLRB 1132, 1132 fn. 1 (1992), the Board affirmed the administrative law judge’s ruling precluding the respondent from adducing evidence that, by supplying requested informa- tion, the union would be participating in an antitrust, price fix- ing violation. As the Board held: “At the point where the Re- spondent’s testimonial evidence invoked potential antitrust and price fixing liability in defense of its alleged unlawful refusal to provide information relevant to its contractual “Most-Favored Nations” clause, however, the judge correctly stated that those contentions were not properly cognizable before the Board and they would not be further entertained.” Accordingly, Respondent’s contention that it is excused from providing the MLA with the requested information because by doing so it “may” be engaging in prohibited anticompetitive conduct is unsupported by the record as well as by extant Board law. b. Burdensome nature of the request In support of this affirmative defense, Respondent asserted at hearing that: “[i]n our view, we don’t have the obligation when we’re confronted with a series of grossly improper interrogato- ries to parse through and decide well maybe this one, maybe that one, maybe not that one.” Respondent contends that under the circumstances here, it was the Association’s obligation to “boil down what they wanted to something real.” Thus, Re- spondent argues that it should be excused from responding to the Association’s information request as it is unduly burden- some. I find that such a claim is without merit. The fact a party may ask an employer for a large volume of information does not, by itself, render that request overbroad so as to relieve a party from the duty to provide such information where, as here, the information is relevant and necessary to contract administration. A respondent must both timely raise such an objection with the requesting party, but also must sub- stantiate its defense. In this case, on March 9, union counsel advised the Association it did not believe that it had an obliga- tion to engage in far reaching and burdensome efforts to gener- ate responses to the MLA’s interrogatories and asked whether there was a “particular and relevant question that we can an- swer without engaging in a burdensome analysis.” Thus, Respondent asserted a general claim that the Associa- tion’s requests were burdensome without identifying with par- ticularity which requests would impose such a burden or why. The Union further failed to identify or make any attempt to reach an accommodation with regard to those aspects of the information request which might pose an undue burden. Nor LITHOGRAPHERS LOCAL ONE-L (METROPOLITAN LITHOGRAPHERS ASSN.) 921 did Respondent substantiate at the hearing, in any quantifiable way, the time, expense or resources necessary it would have to expend to comply with the information requests. Pulaski Con- struction Co., supra at 937; Goodyear Atomic Corp., 266 NLRB 890, 891 (1982), enfd. 738 F.2d 155 (6th Cir. 1984). Accordingly, Respondent’s defense in this regard must be re- jected. Respondent has also argued that it simply does not know some of the information requested. I note that to the extent Respondent made such a reply to the Association, the General Counsel has deemed such a response to be in satisfaction of the Union’s burden in responding to the information request, and has omitted such paragraphs from the instant complaint. In sum, Respondent’s failure to produce such as information as found above to be relevant and necessary to the administra- tion of the Agreement between the Union and the MLA is a violation of Section 8(b)(3) of the Act. With respect to other information sought by the MLA, the complaint should be dis- missed. Based on the foregoing and on the record considered as a whole, I make the following CONCLUSIONS OF LAW 1. The Metropolitan Lithographers Association, Inc., is now and at all material times has been an employer within the mean- ing of Section 2(2) of the Act. 2. Respondent, Local One-L, Amalgamated Lithographers of America is a labor organization within the meaning of Sec- tion 2(5) of the Act 3. At all material times, Respondent has been the exclusive collective-bargaining representative within the meaning of Section 9(a) of the Act for all of the employees in the unit set forth above. 4. By failing and refusing to provide to the Metropolitan Li- thographers Association, Inc., on its request, information pur- suant to paragraphs enumerated 8, 12–21, and 28–33 of its February 13 letter, Respondent violated Section 8(b)(3) of the Act 5. The above unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I recommend that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. I will recommend that Respondent furnish the Metropolitan Lithographers Associa- tion, Inc., that information requested which has been described above and I will further recommend that it be required to post a notice advising employees and members of the results in this case. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended23 23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed ORDER The Respondent, Local One-L, Amalgamated Lithographers of America, New York, New York, its officers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to provide the Metropolitan Lithog- raphers Association, Inc., with the information it has requested since about February 13, 2007, specifically that information sought by paragraphs enumerated 8, 12–21, and 28–33 of its February 13 letter. (b) In any like or related manner engage in conduct in dero- gation of its statutory duty to bargain in good faith with the Metropolitan Lithographers Association, Inc., on behalf of bargaining unit employees. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Furnish the Metropolitan Lithographers Association, Inc., with the information sought by paragraphs enumerated 8, 12– 21, and 28–33 of its February 13, 2007 letter, (b) Within 14 days after service by the Region, post at its business office and meeting place copies of the attached notice marked “Appendix.”24 Copies of the notice, on forms provided by the Regional Director for Region 2 after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Sign and return to the Regional Director for Region 2 suf- ficient copies of the notice for posting by the Metropolitan Lithographers Association, if willing, at all places where no- tices to employees are customarily posted. (d) Within 21 days after service by the Region, file with the Regional Director for Region 2 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO waived for all purposes. 24 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF NATIONAL LABOR RELATIONS BOARD 922 Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT refuse to furnish the Metropolitan Lithogra- phers Association, Inc. (the Association) with the information requested in paragraphs enumerated 8, 12–21, and 28–33 of its February 13, 2007 letter to us. WE WILL NOT in any like or related manner act in derogation of our statutory duty to bargain with the Association on behalf of our members. WE WILL furnish the Association with the information re- quested in paragraphs enumerated 8, 12–21, and 28–33 of its February 13, 2007 letter to us. LOCAL ONE-L AMALGAMATED LITHOGRAPHERS OF AMERICA